Melbourne Assessment Prison, current residence of Cardinal George Pell
Today’s good news is that Australia’s High Court has granted leave for Cardinal George Pell to appeal against his conviction for sexually abusing two choirboys in Melbourne’s Catholic Cathedral in 1996 and 1997.
Pell has been in Melbourne Assessment Prison since February. He is in solitary confinement 23 hours a day, but earns A$10 a week for tending a prison garden.
The High Court hearing will probably take place in March or April next year. Lawyers from each side will speak for about two hours each before the full bench of seven High Court justices.
There should, of course, be criminal prosecutions of predator clergy, along with healing and justice for their victims, and all those hurt by such actions. But I am also concerned that anticlerical hysteria can unjustly ensnare the innocent. Cardinal Pell is a tragic case in point.
Last December a Melbourne jury found the Vatican’s former finance minister guilty and the 78-year-old prelate was sentenced to six years in prison. In September the Victoria state court of appeals rejected his appeal in a 2-1 ruling.
I find the sordid allegations against Pell – that he forced oral sex on a chorister in the sacristy of a packed Cathedral right after Sunday Mass and grotesquely fondled another – fairly incredible. Then again, so were many of the disgusting – ultimately true – misdeeds of other well-known churchmen (for example, Theodore McCarrick).
But what troubles me about Pell’s prosecution is the suspect nature of the Victorian investigative and judicial proceedings.
Consider the fact that a year before any charges were levied against Pell, Victorian police contrived “Operation Tethering.” They placed ads in local papers, asking anyone with information on misbehavior at St Patrick’s Cathedral in Melbourne to give them a call. Sure enough, the complaint in question surfaced.
Consider, as well, the fact that Pell’s first trial on these charges ended in a hung jury. The prosecution did not relent and pursued a second trial.
The case against Pell rests on the testimony of one complainant. One. Prosecutors offered no other corroborating evidence.
The defence, by contrast, brought in more than a dozen witnesses to testify that the alleged crimes could not have happened. There were, they noted, never even rumours of any such incident. All this and the fact that no other alleged victims have come forward distinguishes Pell from those pathological abusers who are so brazen and depraved as to harm children within the house of God.
In the end, Pell’s defence presented an abundance of reasonable doubt. It’s a testimony to an unbecoming prosecutorial fanaticism that the second jury caved and convicted.
In September, a higher Australian intermediary court upheld Pell’s conviction on appeal.
But one member of the three-judge panel wrote an extensive dissent that warrants attention. “[The prosecution] relied entirely upon the evidence of the complainant to establish guilt, and nothing more,” said Justice Mark Weinberg. “There was no supporting evidence of any kind from any other witness. Indeed, there was no supporting evidence of any kind at all. These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more.”
Indeed, Weinberg explained, the prosecution failed to conduct an independent assessment of the evidence and “there was a significant body of cogent evidence casting serious doubt upon the complainant’s account, both as to credibility and reliability.” It was up to the prosecution to prove Pell’s guilt beyond a reasonable doubt.
“The defence had to prove nothing at all,” he concluded. “It did, however, point to a substantial body of evidence that, if submitted, left open at least the ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required for conviction.”
Australia’s High Court should pay heed to Weinberg’s reasoning. It mirrors the point Pell’s lawyers have made in their recent application. They argue that Pell was expected to prove the allegations against him were impossible.
Standards of proof in criminal proceedings are important. They shouldn’t be fudged especially when a high-profile conviction offers a feather in a prosecutor’s hat or might satisfy a public righteously angry that its children have been sexually abused by some of the Catholic clergy. And Australia’s high court should not drag down the innocent like Cardinal George Pell with those guilty of sexually abusing little ones.
Andrea Picciotti-Bayer currently serves as Legal Advisor for The Catholic Association Foundation. She has worked for the United States Department of Justice in the Civil Rights Division. She is also co-host of the podcast Conversations with Consequences.
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